Speech and action: Replies to Hornsby and Langton

Legal Theory

Volumn 7, Issue 2, 2001, Pages 179-201

  Jacobson, Daniel ^a  

^a MARSHALL UNIVERSITY   (United States)

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EID: 84966896745     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201072032     Document Type: Article

References (34)

1. J.S. MILL, ON LIBERTY 36, n. 1 (John Gray and G.W. Smith eds., Routledge 1991) (1859). Note that content-neutrality as a principle of free speech is a different and less ambitious principle from neutrality among conceptions of the good.
2. I am claiming that Mill does not consider harm prevention per se to be even a good (much less a sufficient) reason to censor an opinion or sentiment. This claim is admittedly in tension with some glosses of the so-called harm principle; but, as I have argued elsewhere, the role and content of Mill's principle of liberty is often fundamentally misconstrued. See Daniel Jacobson, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000).
3. See Rae Langton and Jennifer Hornsby, Free Speech and Illocution, 4 LEGAL THEORY 21 (1998). See also Rae Langton, Speech Acts and Unspeakable Acts, 22 PHIL. & PUB. AFF. 293 (1993). See also Jennifer Hornsby, Speech Acts and Pornography, reprinted in THE PROBLEM OF PORNOGRAPHY (S. Dwyer ed., 1995).
4. See Daniel Jacobson, Freedom of Speech Acts? A Response to Langton, 24 PHIL. & PUB. AFF. 64 (1995).
5. J.L. Austin, HOW TO DO THINGS WITH WORDS 109 (2nd ed., 1962).
6. P.F. Strawson, Intention and Convention in Speech Acts, 73 PHIL. REV. 439, 441 (1964).
7. AUSTIN, Intention and Convention in Speech Acts note 6, at 109.
8. JOHN SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE 25 (1969). The italics are his.
9. See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982). On the broad conception of pornography given by MacKinnon and accepted by Hornsby and Langton, however, much that clearly counts as speech must be included.
10. Hornsby, On the broad conception of pornography given by MacKinnon and accepted by Hornsby and Langton, however, much that clearly counts as speech must be included. note 4, at 229. See also Rae Langton, Pornography: A Liberal's Unfinished Business, 12 CAN. J. L. & JURIS. 109 (1999).
11. See Jacobson, Pornography: A Liberal's Unfinished Business note 2.
12. AUSTIN, Pornography: A Liberal's Unfinished Business note note 6, at 14.
13. The italics and capitalization are his.
14. SEARLE, The italics and capitalization are his. note 9, at 60.
15. AUSTIN, Id. note 6, at 17.
16. Langton, Id. note 6 note 4, at 321.
17. Langton, Id. note 6 note 4 note 4, at 321. The italics are hers.
18. Id at 317. This example is more problematic than Langton acknowledges. She grants in a footnote that “there are other means of achieving divorce, some of which are available to women in special circumstances” (id. at 317, note 46). But surely the force of this example would be greatly diminished if a woman could divorce her husband simply by reciting some other phrase-or by equally easy non-verbal means. It would be odd to say that a woman's speech rights are infringed just because only the male-initiated divorce ritual is verbal. Of course, if divorce is more difficult for women than for men to secure, that seems like a rights violation; but surely the right being violated has to do with equal protection generally and with marriage rights specifically. It is not a matter of free speech.
19. See Hornsby and Langton, Id. note 4, at 29, n. 18.
20. Hornsby and Langton, Id. note 4, at 26, n. 14. In fact, Langton uses this locution not just occasionally but consistently; and, more important, she draws upon it illicitly in her argument.
21. The italics are theirs.
22. AUSTIN, The italics are theirs. note 6, at 122. In fact, he is being a bit hasty here, since the judge would not merely have to hear what was said; Austin's considered view is that the judge must consider “the total speech act in the total speech situation” (id. at 52). But the crucial point is that the speech situation does not include the state of mind of the auditor-or, for that matter, the speaker. A judge could have no access to the mental states of either party, of course, except through the behaviors in which they are expressed.
23. Langton, A judge could have no access to the mental states of either party, of course, except through the behaviors in which they are expressed. note 4, at 324. The italics are hers. This is the point at which Langton puts forward the idea that the illocutionary silencing of women by pornography might be a fait accompli. The crucial premise, which she attributes to Catharine MacKinnon, is that: “The felicity conditions for women's speech acts are set by the speech acts of pornography”; hence pornography “determines the kind of speech there can be” (id. at 324). While Langton does not go so far as to affirm this claim, she seems to regard it as plausible. Had pornography indeed authoritatively set the rules of the language game of sex, such that “no” (and every other act or locution) is just another way for a woman to make the consent move, then rape (of women) seems impossible. Moreover, it would be a Pyrrhic victory for Langton to claim merely that consent is the only thing women can do with their words, though they can refuse sex-or withhold consent-in other ways (see infra notes 19 and 24).
24. Langton, The italics are hers. note 4, at 325.
25. AUSTIN, The italics are hers. note 4 note 6, at 92.
26. MILL, The italics are hers. note 4 note 6 note 1, at 72.
27. It is crucial to recognize that it cannot be the harmfulness of such speech, per se, which puts it beyond the pale of the general immunity given to opinions. This is evident when one considers that this opinion would be protected when circulated in the press, even with the intention (and the reasonable expectation) of bringing about political change which would be disastrous to the interests of corn dealers. On this issue, see Jacobson, The italics are hers. note 4 note 6 note 1 note 2.
28. Hornsby and Langton raise another red-herring objection over whether instigation and incitement are illocutionary or perlocutionary acts. In ordinary language one can certainly instigate or incite without succeeding in precipitating an event (hence these seem to be illocutionary verbs). But one can still hold with Mill that, as a matter of law, “the instigation to [tyrannicide], in a specific case, may be a proper subject of punishment, but only if an overt act has followed, and at least a probable connexion can be established between the act and the instigation” (MILL, It is crucial to recognize that it cannot be the harmfulness of such speech, per se, which puts it beyond the pale of the general immunity given to opinions. note 1, at 36, n. 1).
29. Jacobson, Hornsby and Langton raise another red-herring objection over whether instigation and incitement are illocutionary or perlocutionary acts. note 5, at 71.
30. Hornsby and Langton, Hornsby and Langton raise another red-herring objection over whether instigation and incitement are illocutionary or perlocutionary acts. note 5 note 4, at 32.
31. Thus, although Mill favors the taxation of dangerous products, he writes that “to tax stimulants for the sole purpose of making them more difficult to be obtained, is a measure differing only in degree from their entire prohibition; and would be justifiable only if that were justifiable”-which, of course, it is not. See MILL, Hornsby and Langton raise another red-herring objection over whether instigation and incitement are illocutionary or perlocutionary acts. note 5 note 4 note 1, at 114.
32. It is widely but mistakenly thought that speech is not a self-regarding action for Mill, because it can affect and even harm others. But this is true of all self-regarding action, as Mill acknowledges-the self-regarding is not the harmless: “I fully admit that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests….” (id. at 96). On speech as a paradigm of the self-regarding, see Jacobson, Thus, although Mill favors the taxation of dangerous products, he writes that “to tax stimulants for the sole purpose of making them more difficult to be obtained, is a measure differing only in degree from their entire prohibition; and would be justifiable only if that were justifiable”-which, of course, it is not. note 2.
33. Hornsby, It is widely but mistakenly thought that speech is not a self-regarding action for Mill, because it can affect and even harm others. note 4, at 229. While not all liberals assimilate drowning out with governmental restriction of speech, it is often held that such action infringes free speech.
34. Hornsby and Langton, While not all liberals assimilate drowning out with governmental restriction of speech, it is often held that such action infringes free speech. note 4, at 33.